Norm hierarchy (Germany)

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The norms of German law are in a norm hierarchy .

Within the framework of the federal system of competencies, the first decisive factor with regard to legislation is who has been assigned legislative competence in the federal state by the Basic Law ( Art. 70  ff. GG ). For example, if it lies with the federal government - either because the federal government has exclusive legislative competence or because it has made use of its right to legislate in competition - the state can no longer make any effective regulation in this area.

In addition, the priority relationship between the legal norms of the Federation and the Laender in the sense of priority is determined by Art. 31 GG: " Federal law breaks Land law ". Because of the comprehensive regulation of legislative competences in Art. 70 ff. GG, the importance of this provision is limited to determining the order of precedence of federal law in relation to state law.

The sources of law can therefore be arranged as follows in a slightly simplified way:

  • State law
    • State constitutional law
    • formal (parliamentary) law
    • other substantive law (statutory ordinance of the state government; statutes of an establishment or corporation under state law including municipal statutes)

European Union law does not affect the validity of this hierarchy, because for this source of law an application priority applies , not a validity priority .

The administrative regulations would have to be arranged below the law in the material sense .

Binding individual acts ( circulars , administrative acts , public law contracts , judgments ) are ranked below each legal norm due to the primacy of the constitution and the primacy of the law .

Since this hierarchy of norms is often visualized as a pyramid, the term pyramid of norms is also common in place of the hierarchy of norms .

The legal sources according to German Federal Constitutional Law in detail

The German constitution, the Basic Law, does not name all legal sources. Sources of law can develop over the course of time, but they can also lose their importance and possibly even disappear. The sources of law are ranked in relation to one another.

Federal Constitutional Law

The priority of application of Union law also extends to the Basic Law. This has been recognized by the Federal Constitutional Court in several decisions. However, the Basic Law is the main source of law for domestic law. Legal clauses below constitutional rank that contradict the Basic Law are usually unconstitutional and must be declared null and void by the Federal Constitutional Court. The basis of all other domestic sources of law is therefore the Basic Law as the federal constitution.

European law

In the meantime, European law in the narrower sense has become a very important source of law : In the case of Union-related or overarching issues, European law has priority. Legal sources are:

  • the primary law : these are the agreements on European Union (TEU) and the Functioning of the European Union (TFEU).
  • the secondary law : These are the regulations , directives , decisions and recommendations (and opinions) the Union's institutions.

In addition - insofar as they rank between primary and secondary law - international agreements of the European Union , which find their legal basis in Art. 47 TEU and Art. 216 TFEU .

With these legal sources, however, the binding effect must be differentiated:

  • A distinction must be made between secondary law (according to Art. 288 TFEU):
    • Regulations have an immediate effect on citizens and Member States in the EU.
    • Guidelines are to be implemented by a certain date. In contrast to the regulation, they only specify the goal, not the means. They are directed at the Member State, but if the citizen is thereby granted legal positions that favor him, the Member State can be liable for damages or an infringement procedure can be initiated against it.
    • Resolutions are addressed to individual member states and are binding for them in all parts.
    • Recommendations and opinions are not binding.

European law is to be included in the hierarchy of norms above constitutional law. The European legal norms appear alongside the national law. However, two things should be emphasized: Firstly, in contrast to what is otherwise customary between the levels of the hierarchy of norms, European law does not enjoy priority, but only one priority of application. However, if there is a conflict between European law and domestic law, this does not result in its nullity. The respective member state regulations therefore continue to apply and remain relevant for cases that are not covered by the conflicting European legal standards. Second, European law only has binding effect in Germany because the German legislature has transferred sovereign rights to the European Union on the basis of Article 23 of the Basic Law (→  Political System of the European Union ). Since even the constitutional legislature according to Article 79.3 of the Basic Law is unable to amend Article 1 and Article 20 of the Basic Law, a European law standard does not apply in Germany unless it is compatible with these constitutional provisions. This principle therefore modifies and relativizes the fundamentally higher ranking of European law in the hierarchy of norms compared to German constitutional law.

international law

In Germany international law only enjoys the rank of simple law (arg. From Article 59, Paragraph 2 of the Basic Law), so that the Basic Law has priority here and later laws for the domestic area can supersede international law (so-called "lex posterior" - Principle). However, the general rules of international law according to Art. 25 GG take precedence over the laws and apply as German federal law . It is controversial whether these general rules even have federal constitutional status or a rank between constitutional and simple federal law. In practice, this question and the source of the law are of little importance.

Theories on the relationship to national law, national enforcement, applicability and national rank
Relationship between international law and national law Domestic enforcement of international law Enforcement Domestic rank
  • specially defined by international treaty
  • not specifically set
  • monism
Unity of international law and national law
  • with primacy of IL
Primacy of international law
  • radical monism (strict monism)
every national sovereign act contrary to international law is null and void
  • tempered monism
every national sovereign act contrary to international law is initially valid, but must be rejected by judicial review
  • with primacy of national law
National law takes precedence
  • dualism
International law and national law are different legal systems
  • radical dualism (strict dualism)
no conflicts possible, as there are separate, possibly tangent circles
  • tempered dualism
partial overlaps and thus conflicts possible; in the area of ​​overlap: conflict of law rules, otherwise: domestic sovereign act still valid, but the state is liable to the outside world
Adoption theory (adaptation)

International law is applicable domestically without any further act

only self-executing norms are applicable, enforceable or transformable:
  • the norm must be sufficiently determined and
  • authorize or oblige the individual according to wording, purpose and content
Execution theory (execution)

Enforcement order establishes domestic applicability, but does not change the addressees or the legal nature (international law)

Transformation theory (transformation)
  • strict transformation theory
  • moderate transformation theory
Transformation only changes the target group; Entry into force etc. is therefore based on international law
  • general transformation
  • special transformation
Individual transformation, for example through the act of consent to international agreements = treaty laws
 The rank of transformed law is directed
  • according to special regulations
  • otherwise according to the rank of the transformer

Formal laws

A formal law (also: law in the formal sense ) is any regulation that has come about as part of a formal legislative process . In the modern constitutional state , the central act of this procedure is the adoption by parliament (in Germany the term parliamentary law is therefore used synonymously ).

A formal law may contain the authority to issue statutory ordinances or articles of association .

The parliamentary act, anchored in constitutional law , is decisive for the hierarchy at the top. The legislative monopoly prevailing in common law determines that law derived from it (ordinances, etc.) may only be enacted by another authority on the basis of statutory law.

The opposite of formal law is material law . However, this term has nothing to do with the hierarchy of legal sources described here; Legal regulations at all hierarchical levels can be material laws.

Regulations

Legal ordinances serve to relieve the legislature . Historically, they appear for the first time through the confirmation of the separation of powers in the modern state. The executive is legally empowered to regulate technical issues and details that would unnecessarily hinder everyday parliamentary work. However, this delegation is also legitimized by the constitutional safeguard and therefore does not represent a problem of democracy. Ordinances are not issued by the government or individual ministries alone. They can be found at all levels of administration.

At the federal level, the Bundesrat is largely involved in issuing federal ordinances, although it is not really a second chamber.

The ordinances can be divided into government ordinances and administrative ordinances.

Statutes

Corporations , institutions and foundations under public law are authorized by law to issue statutes to regulate their own affairs. This competence is the so-called constitutional autonomy . Universities in particular, the chambers for independent professions , but also municipalities - that is, territorial or group-plural bodies - make use of this. Municipal statutes are part of local law .

Collective agreement law

As part of the freedom of association, the agreements of the collective bargaining parties in labor law enjoy a priority below state constitutional law. The collective agreement takes precedence over the works agreements and the regulations of the employment contract.

Administrative regulations

Basically, with a few exceptions, the administrative regulations are only binding on the administration itself. However, if they have a normative effect and in connection with the principle of equality, they can also become important for citizens themselves. The quality of a legal source must therefore also be attributed to the administrative provisions. Administrative regulations can, under certain exceptions, deviate from the highest court rulings and are listed in this presentation before common and judicial law.

common law

Customary law arises where long practice and the conviction of the legality of this practice result in non-codified regulations that can be formulated as a legal sentence. Customary law can arise at any level of the norm pyramid (e.g. customary constitutional law, observance ). However, encroachments on fundamental rights must always be based on a formal law ( legal reservation ), so that no conflicting customary law can arise (but pre-constitutional law is considered ).

Judicial law

The case law serves as closing gaps in statutory law. The legislature is not in a position to think ahead about every issue and to regulate the content legally. In this respect, judicial law arises that is also binding. However, this liability is generally classified as weaker than the other legal sources. In some cases it is disputed whether judicial law has the character of a source of law at all. However, since the decisions of the higher courts can have a certain (at least factual) binding effect beyond the determined facts, the legal source character of judicial law is increasingly emphasized.

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